[*1]
People v Almonte
2011 NY Slip Op 50356(U) [30 Misc 3d 1234(A)]
Decided on March 8, 2011
Supreme Court, Bronx County
Livote, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through March 16, 2011; it will not be published in the printed Official Reports.


Decided on March 8, 2011
Supreme Court, Bronx County


The People of the State of New York,

against

Gregory Almonte, Defendant.




0209/2009



ROBERT T. JOHNSON, ESQ.

DISTRICT ATTORNEY, BRONX COUNTY

198 East 161st Street

Bronx, New York 10451

BY:David J.Kirsh, Esq., ADA

James Crofts, Esq., ADA

Assistant District Attorneys

JAMAL JOHNSON, ESQ.

Attorney For the Defendant

110 Wall Street, 11th Floor

New York, NY 10005-3817

Leonard Livote, J.



The defendant is charged with Criminal Possession of a Controlled Substance in the Third Degree. Defendant moves to suppress the cocaine that serves as the basis for the charges against him. On February 7, 2011, the Court conducted a Mapp/Dunaway hearing. The People's sole witness was Police Officer Joseph Richman. The Court finds Officer Richman's testimony to be credible and makes the [*2]following findings of fact and conclusions of law.

Findings of Fact


On November 13, 2008, Officer Richman was working as a plainclothes anticrime officer with Officers Brian Shea, Derrick Lenart, and Jake Newman. At approximately 3:08 a.m., the unit approached a building located at 1710 Andrews Avenue in the Bronx. The building is located in a high-crime area known for drugs and robberies. The building is also a "clean-halls" or "trespass affidavit" building. In a clean halls building, the owner granted the police the permission to patrol the halls and stairwells and arrest trespassers and loiterers.

As the police approached the location, they observed defendant and another individual exit the building. Officer Richman decided to check defendant's identification to determine whether he was legally in the building. Officer Richman exited his car with his shield prominently displayed and identified himself as a police officer. In response to Officer Richman's actions, the defendant grabbed his waistband and began shifting his gaze back and forth from Officer Richman to his waistband. As Richman approached, defendant took off running.

Officer Richman pursued defendant. During the pursuit, Officer Richman observed defendant take a clear plastic bag containing white powder and attempt to throw it over a fence. The bag hit the top of the fence and fell to the ground. Officer Richman observed other members of the unit apprehend defendant and then retrieved the bag which constitutes the evidence that the defendant moves to suppress. There was no evidence as to what became of defendant's companion.

Conclusions of Law


Officer Richman testified that he was going to check defendant's identification to determine if he had a right to be in the building. Apparently, Officer Richman was operating under the assumption that he had the authority to identify anyone leaving a trespass affidavit building, and his actions were consistent with that assumption. As a threshold matter, the Court rejects the assertion that the police may demand identification from an individual solely because he is leaving a trespass affidavit building. (see, People v Ventura, 30 Misc 3d 587 [Sup Ct, New York County 2010]). The location of the incident is, nevertheless, relevant in determining the propriety of the police conduct.

In People v Marine, the First Department explained the weight that should be accorded to evidence of location as follows:
"Of course, in determining whether the police acted reasonably in a given case, a court may consider "the nature and location of the area where a suspect is detained." (People v Bronston, 68 NY2d 880, 881.) That factor, however, must "exist in combination with objective factors specific to the incident which together support a founded suspicion that some particular criminal activity may be afoot." (People v Boulware, 130 AD2d 370, 373)."
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(142 AD2d 368, 372 [1st Dept 1989])

In this case, the police initially only needed to justify the minimal, level one intrusion of approaching to request information which is permissible when there is some "objective credible reason for that interference not necessarily indicative of criminality" (People v DeBour, 40 NY2d 210 at pp. 222-223). The requirement that there be some objective evidence in addition to location can also be seen in trespass affidavit cases. Decisions of the First Department which have upheld DeBour level one police intrusions inside trespass affidavit buildings, have uniformly noted some additional factor, such as defendant's presence in a group of 9 or 10 persons, (People v Anderson, 306 AD2d 54 [1st Dept 2003]) or the arrest for trespassing another individual who had entered the building at the same time as defendant (People v Abad, 279 AD2d 358 [1st Dept 2001]). Moreover, when the police approach a person inside a building, they are in a better position to make an initial assessment of whether or not the person's presence is proper. Accordingly, decisions which have upheld requests for information from individuals exiting trespass affidavit buildings have also noted some additional factor. For example, in People v Greene (271 AD2d 235 [1st Dept 2000]) the police observed defendant placing something in his pocket, and being startled at the sight of the uniformed officer. Similarly, in People v Magwood (260 AD2d 246 [1st Dept. 1999]), the defendant left the building after an "apparent signal from known steerers in a drug-selling operation."

In this case, the defendant's conduct, prior to Officer Richman's appearance, was completely innocuous. There was no indication that the defendant was a trespasser, engaged in any other criminal activity or any other objective, credible reason for approaching the defendant. Accordingly, the only reason for the police intrusion was the location, which is by itself, insufficient.

Furthermore, where the police are justified in making a DeBour level one, request for information, flight, even if coupled with equivocal circumstances, does not escalate the situation to a level two encounter which would justify police pursuit (People v Holmes, 81 NY2d 1056 [1993]). Grabbing one's waistband provides no information regarding criminal activity (People v Robbins, 83 NY2d 928 [1994]). Accordingly, even if the initial encounter had been lawful, the subsequent pursuit was nonetheless unjustified.

Conclusion


On a motion to suppress physical evidence, the People bear the initial burden of establishing the legality of the police conduct (People v. Malinsky, 15 NY2d 86 [1965]). Once the People establish the legality of the police conduct the burden shifts to the defendant to prove by a preponderance of the evidence that the evidence should be suppressed (People v. Berrios, 28 NY2d 361[1971]).

In this case, the People have failed to meet their initial burden of establishing the legality of the police conduct. Accordingly, the motion to suppress is granted and evidence recovered is suppressed. [*4]

This constitutes the Decision and Order of the Court.

__________________________

LEONARD LIVOTE. A.J.S.C.